Antony Mundy v MSS Security Pty Ltd T/A MSS Security

[2015] FWC 3226

[2015] FWC 3226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antony Mundy
v
MSS Security Pty Ltd T/A MSS Security
(U2015/542)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 MAY 2015

Application for relief from unfair dismissal - sleeping on security duty - valid reason - summary dismissal - employee left to work for further six weeks - unfair - reinstatement.

[1] On 10 February 2015 Mr Mundy lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with MSS Security (MSS). This application was referred to me for determination. It was the subject of a hearing in Port Augusta on 8 May 2015.

[2] At this hearing Mr Mundy was represented by Mr Grealy of United Voice and MSS by its Human Resources Manager SA/NT, Ms Jansen.

[3] Mr Mundy worked as a security officer at the MSS Alinta Energy site at Port Augusta from November 2011. His initial casual employment was made permanent in December 2011. He had a good employment history and had not been subject to any form of disciplinary action. He signed to signify his acknowledgement of the MSS Standing Officer Instructions on 6 March 2014. At various times throughout his employment he had participated in training programs. He completed the last such program on 8 December 2014.

[4] On 17 and 18 December 2014 Mr Mundy was working a night shift from 6.00 p.m. to 6.00 a.m. He was the only MSS employee on duty. He was observed by a representative of the client at 4.56 a.m. to be asleep. That Alinta Energy supervisor then woke him.

[5] Mr Mundy continued to work his normal shifts for about six weeks after that event.

[6] MSS was formally informed of the matter on 16 January 2015. MSS issued a letter of allegation to Mr Mundy on 28 January 2015. Mr Mundy responded in writing the next day. On 29 January 2015 MSS held a meeting with Mr Mundy by telephone. Mr Mundy had a union official present at the meeting. This meeting concluded with the summary termination of Mr Mundy’s employment.

[7] Mr Mundy’s position is that he fell asleep as a consequence of exceptional circumstances. Further, this summary dismissal was disproportionate to his misconduct, and, in any event, the termination of his employment termination lacked a valid reason. In this respect, Mr Mundy’s position is that, after this incident he worked, without any complaint, until MSS detailed allegations to him on 27 January 2015. There is little dispute over the disciplinary procedure followed by MSS. Mr Mundy seeks reinstatement as his preferred remedy.

[8] The MSS position is that sleeping whist on duty is identified in its Standing Instructions as one of the most serious offences and that these standing instructions confirm that it will result in employment termination. Mr Mundy last signed his acknowledgement of these Standing Instructions on 6 March 2014 and had completed “Fit for Work” training only 10 days earlier. The requirement not to sleep on duty was confirmed as serious misconduct in other employment instructions. MSS assert that Mr Mundy should have taken personal leave if he was not fit for work. MSS assert that it had a valid reason for the termination of Mr Mundy’s employment.

[9] I have taken all of the evidence before me into account in reaching a decision. Whilst not attempting to be at all exhaustive I have summarised the witness evidence in the following terms.

[10] Mr Mundy’s evidence went to his employment history and to the events that led to him falling asleep. On 17 December 2014 he was advised that his elderly mother had fallen at home and had been admitted to hospital with what may have been a serious injury. He was concerned for her well being and had not been able to sleep. Mr Mundy decided he was able to work and completed all of his work tasks. He made himself a cup of tea and then fell asleep. He was woken by an Alinta Energy supervisor who knocked on the window. Mr Mundy estimates that he was only asleep for a short time as his cup of tea was still too hot to drink.

[11] Mr Mundy continued to work normally until he received a letter of allegation dated 27 January 2015. His evidence went to his response to that letter in which he detailed an apology and the circumstances which led to his conduct.

[12] Mr Collina is the MSS Senior Security Officer at the Alinta Energy site. He detailed the work arrangements at the site. Mr Collina was on annual leave from 22 December 2014 to 7 January 2015. On 9 January he was informally advised that he should talk with the Alinta Energy Shift Superintendent, Mr Paynter about a security officer sleeping on duty. On his return to work between 13 and 16 January 2015 he spoke with Mr Paynter who provided him with the details of the incident. He requested confirmation of these details in writing and was given these details in an email on 16 January 2015. Mr Collina forwarded this email on to Mr Lange at MSS in Adelaide. Later on that day Mr Collina provided further information to Mr Lange about the matter.

[13] Mr Lange is the MSS Business Manager, Client Services. His evidence went to his referral of the 16 January 2015 report to Ms Jansen that same day. Mr Lange’s evidence was that during the week 19 to 23 January 2015 he was preoccupied with the major Tour Down Under event and MSS was unable to action the matter.

[14] Mr Lange forwarded the letter of allegations to Mr Mundy on 27 January 2015 and received Mr Mundy’s response a day later. He also had a discussion with the Alinta Contract Administrator who expressed displeasure over the incident. Mr Lange gained the impression that Alinta did not want Mr Mundy back on the Alinta site. Mr Lange discussed the matter with the MSS General manager SA/NT. At the meeting on 29 January 2015 he advised Mr Mundy of additional information relative to the matter.

Findings

[15] Before considering the factors set out in s.387 of the FW Act, I have detailed my conclusions about the particularly relevant facts of this matter.

[16] There is no evidence that indicates that there were any performance or conduct issues associated with Mr Mundy prior to this incident.

[17] Mr Mundy’s employment was subject to an employment contract dated 6 December 2011 1 which stated:

“In accepting employment with MSS, you are accepting that the following are considered to be serious misconduct by MSS and could result in immediate dismissal.

This list is not exhaustive. If you are in any doubt as to what is serious misconduct you should check the “Hand Book”.

• Theft or malicious damage.



• Misrepresentation, alteration of fraudulent use of evidence of qualification, or previous experience, or of references for the purpose of obtaining employment.



• Breaches of the MSS Security Compliance Program and/or relevant Trade Practices legislation (Disciplinary Code applies).



• Breaches of MSS Security EEO (Harassment & Discrimination) and Workplace Anti-Bullying policies



• Gambling, fighting, or sleeping whilst on duty.

....” 2

[18] The MSS Security Officer Standing Instructions have been amended from time to time over the duration of Mr Mundy’s employment. The Employee Standing Instructions 2012 relevantly state:

“Protection and prevention is an employee’s prime responsibility and they must always be alert. Sleeping whilst on duty disables your ability to perform your role effectively and may place your own or others’ health, safety or welfare in jeopardy. Sleeping on duty is considered one of the most serious offences an employee can commit and will result in their employment being terminated summarily.” 3

[19] Mr Mundy was clearly aware, and had committed to comply with those Employee Standing Instructions. He last endorsed them on 6 March 2014.

[20] The MSS Security Fit for Work training 4 last undertaken, on an online basis, by Mr Mundy on 8 December 2014, addresses the management of fatigue and stress. It provides guidance relative to the identification and effects of fatigue.

[21] Mr Mundy’s reasons for being tired on 17 December 2014 are understandable, but I do not consider that, given the training undertaken by him and his work function, they represent a circumstance which made him unable or incapable of properly assessing his fitness for work. Mr Mundy’s own evidence was that:

“When it was time to get ready to go to work, I was conscious that I had not slept properly and had been stressed. I also knew that a casual could be called to come in and cover for me if necessary.

I checked whether I was in the right frame of mind, and whether my body required more sleep. I decided that I felt fit for work and that i could safely perform my duties.” 5

[22] I accept Mr Mundy’s evidence that he was not asleep for very long. 6 Nevertheless, the observation of Mr Mundy being asleep on duty by an Alinta Energy supervisor must undermine the standing of MSS as a security service provider with its client.7 I am not satisfied that there is any evidence that confirms that Alinta Energy was not prepared to have Mr Mundy return to security officer functions at its site. There is no indication that Alinta Energy took steps to actively address the issue or that it regarded it as substantial. Indeed, the email advice8 from the Alinta Energy Supervisor to Mr Collina of 16 January 2015, which confirmed the details of the incident, concluded in the following terms:

“There were several people on site and around the control room at the time and all listening to the radio chatter, so many people know of this little happening and the story has got around. These are the facts as what I know.” 9

[23] Absent evidence which indicated that the matter was regarded by Alinta as prohibiting Mr Mundy from continuing to work on its site as a consequence of his behaviour, I have not concluded that he has been prohibited from doing so at the present time. 10

[24] The evidence of Mr Collina confirms that, when he worked on 7 and 8 January 2015, on his return from leave, he heard rumours around the Alinta site about a security officer sleeping on duty. On 9 January 2015 he was advised that he should talk to Mr Paynter, a Shift Superintendent at Alinta Energy. I accept Mr Collina’s evidence that Mr Paynter was not at work at that time. However, the issue was then left in abeyance until Mr Collina next worked, in the week commencing on 13 January 2015. 11 It was not until 16 January that Mr Paynter provided Mr Collina with an email detailing the incident.12 To the extent that MSS regard sleeping on duty to be such a serious issue, I have concluded that the absence of earlier action to investigate the matter was inconsistent with the significance it was later accorded.

[25] Further, and even more significantly in this respect, I have concluded that MSS senior management were aware of this issue on 16 January 2015 and permitted Mr Mundy to continue to work until he was given the letter of allegation dated 27 January 2015. It may well have been the case that this was a particularly busy time for MSS but, I am satisfied that a deliberate decision not to act relative to the matter was made and this is also inconsistent with the conclusion reached by MSS on 29 January 2015, to summarily dismiss Mr Mundy.

[26] The allegations relating to Mr Mundy were detailed in the letter of allegation of 27 January 2015. While Mr Mundy was given, and utilised an opportunity to respond to those allegations, the evidence of Mr Lange was that the employment termination decision had been made before that meeting. The evidence of Mr Lange was that:

“Mr Grealy: After you spoke with the client, you spoke with Mr Burley and Ms Jansen, is that right?

Mr Lange: That is correct.

Mr Grealy: And the three of you decided that Mr Mundy understood the consequence of his actions.

Mr Lange: Yes that is correct.

Mr Grealy: Mr Mundy new sleeping on duty would lead to dismissal, correct?

Mr Lange: Correct.

Mr Grealy: So the three of you concluded at that time that Mr Mundy had to be dismissed.

Mr Lange: That is correct.

Mr Grealy: You made the decision to dismiss, is that right?

Mr Lange: It was not my decision to be made .... it was in conjunction with the three of us.

Mr Grealy: The three of you made the decision together, is that right.

Mr Lange: I would say the main decision would be between Rebecca and the General Manager Matt Burley. 13

[27] Section 387 of the FW Act states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[28] I have considered each of these factors.

Valid Reason

[29] Notwithstanding subsequent legislative changes, I have adopted the principles set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 14.

[30] Mr Mundy’s actions in not properly assessing his own fitness for work and, consequently falling asleep, were fundamentally inconsistent with his role as a security officer. His conduct breached the mandatory Standing Orders and was inconsistent with the training last undertaken by him only 10 days before he made a seriously flawed assessment of his fitness for work. I have concluded that, whilst that poor assessment of his own fitness for work should be regarded as a wilful act, Mr Mundy did not behave wilfully by actually falling asleep.

[31] Nevertheless, Mr Mundy’s conduct in falling asleep should be regarded as particularly significant given that he was the only security officer on duty and was discovered, asleep, by the client. That discovery must reasonably give rise to concern about the calibre of the service provided by MSS.

[32] On balance, given the particular circumstances of this matter, I have concluded that Mr Mundy’s wrong assessment of his fitness for work which resulted in him falling asleep represented a valid reason for the termination of his employment. Had it not been for the very recent fit for work training done by Mr Mundy, I may have reached a different conclusion.

[33] I have considered the extent that this employment termination occurred on a summary basis later in this decision.

Notification of the reason

[34] Mr Mundy was advised of the reason for the termination of his employment in the course of the disciplinary interview on 29 January 2015. That advice was confirmed in a termination of employment letter forwarded to him on 30 January 2015.

Opportunity to Respond

[35] MSS detailed its allegations regarding Mr Mundy’s behaviour in correspondence to him dated 27 January 2015. 15 That correspondence made clear the serious nature of the allegations against him. It confirmed the capacity for Mr Mundy to participate in a disciplinary meeting to allow further consideration of the matter.

[36] The correspondence of 27 January 2015 provided Mr Mundy with the opportunity to respond to these allegations. Mr Mundy utilised that opportunity and provided a response 16 in which he explained the circumstances which led to him falling asleep whilst on duty. In that response Mr Mundy acknowledged that he had fallen asleep and apologised for his behaviour. However, as I have already observed, the decision to terminate Mr Mundy’s employment was made prior to the meeting to discuss the allegations against him. I consider that to be indicative of unfairness.

Any unreasonable refusal to allow a support person

[37] At the disciplinary meeting on 29 January 2015 Mr Mundy had a representative from United Voice present as his representative. Accordingly, there was no unreasonable refusal to allow a support person.

Warnings about unsatisfactory performance

[38] Mr Mundy had not been warned about unsatisfactory performance prior to the termination of his employment. I have concluded that the termination of his employment occurred because of the nature of his misconduct and that this was not related to performance issues. To the extent that sleeping on duty could be regarded as an element of unsatisfactory performance, and hence MSS could have elected to give Mr Mundy a warning, this does not detract from my conclusion that there was a valid reason for the termination of his employment.

Size of the MSS enterprise - likely impact on procedures and absence of dedicated human resource management expertise.

[39] MSS is a substantial employer. On the evidence before me I am satisfied that it has procedures relating to disciplinary action and that it has access to specialist human resource management expertise. In this case Ms Jansen was actively involved in the disciplinary process.

Other matters considered relevant

[40] I have considered the extent to which the termination of Mr Mundy’s employment occurred on a summary basis. Whilst summary dismissal is referred to in the Standing Orders as a likely consequence of sleeping on duty, I consider that this summary dismissal was inconsistent with what I have concluded was a tardy investigation of this matter. That tardiness related to delays in identifying the basis of the concerns held by Alinta Energy prior to 16 January 2015 and, then, delays in actioning those concerns. There is a fundamental inconsistency between permitting a long delay of this nature to occur such that Mr Mundy continued to work as a security officer at the Alinta Energy site even after MSS was aware of the allegations made against him. Simply put, if his behaviour in falling asleep whilst on duty was so significant then it was a matter that should have been actioned much earlier. The Full Bench decision in McNair v ABB Australia Pty Ltd 17 addressed this issue in the following terms:

“[17] This was said to be a fundamental error. While the Commissioner found that the termination was contrary to the Act he then, for the purpose of denying the Act's primary remedy, reached back some six months and relied on the email of 13 January 2003 incident. It was said the respondent could no longer rely on that because, through its inactivity it had condoned the action of the applicant in sending the email. Mr Ginters made reference, to support his submission on waiver, to the decision of Cook J in the Industrial Commission of New South Wales in Clarke v. Metropolitan Meat Industry Board [(1967) AR(NSW) 16] in which Cook J said [at p.25]:

". . . where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having `condoned' that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action."”

[41] Consequently, I consider that the summary dismissal incorporated a significant measure of harshness given that it occurred some six weeks after 17 December 2014.

[42] I have also noted Mr Mundy’s submission that the termination of his employment was harsh in that it was disproportionate and in terms of its impact on him.

[43] I not satisfied that the proportionality of the termination represents harshness. The clear instructions provided to Mr Mundy as a security officer emphasised the importance attaching to remaining awake and, bluntly, a sleeping security officer is fundamentally inconsistent with the concept of a security service.

[44] In terms of the personal and economic impact of the termination of Mr Mundy’s employment, I am unable to accept his proposition that he has achieved an “advanced age” in that he is 59. Nevertheless, I acknowledge that employment opportunities in comparable positions in the Port Augusta area are likely to be inherently limited.

Conclusion - Harsh, Unjust or Unreasonable

[45] I have concluded that the termination of Mr Mundy’s employment was not unjust in that he failed to properly apply the MSS fitness for work principles which he had so recently recognised and put himself in a position whereby his actions in falling asleep clearly compromised the fundamental security officer function.

[46] I am satisfied that the termination of Mr Mundy’s employment should not be regarded as unreasonable in that it was based on acknowledged facts rather than inferences.

[47] However, I consider that Mr Mundy’s summary dismissal must be regarded as harsh in that it was a disproportionate response to his behaviour given that he had worked for some six weeks after the incident without further complaint and had continued to work after MSS was, or should reasonably, have been aware of the matter.

[48] As a consequence, I consider that the termination of Mr Mundy’s employment was unfair for the purposes of s.395 of the FW Act. In these circumstances, s.390 provides that the Commission may order a remedy. This section makes it clear that the primary remedy is that of reinstatement.

[49] Mr Mundy seeks reinstatement to his previous position. MSS opposes reinstatement. It asserts that Mr Mundy’s conduct means that it cannot have the necessary degree of trust and confidence in him as a security officer. Further, MSS asserts that termination of employment is a standard response to a security guard falling asleep. I have also taken it as implicit that MSS is concerned that reinstatement could affect its relationship with Alinta Energy.

[50] Mr Mundy’s position is simply that there are minimal alternative jobs that he could undertake in the Port Augusta region.

[51] I have concluded that reinstatement is appropriate in these circumstances, primarily because the evidence confirms that Mr Mundy was able to continue to undertake his security officer duties without incident or concern being expressed by the client for some six weeks after he fell asleep. Clearly, if Mr Mundy repeats that misconduct he should expect to be dismissed. Equally there can be no guarantee that there will not be a complaint about him from the client which could affect his ongoing employment.

[52] In reaching this conclusion I have considered the possibility of reinstatement to an alternative position consistent with s.391(1)(b), but the information before me confirms that this is the only security contract MSS have in the Port Augusta area.

[53] Section 391(2) provides that the Commission may order that Mr Mundy’s continuity of service be maintained. I consider that such an order is appropriate in these circumstances. This is consistent with his employment record up to the time of his dismissal.

[54] Section 391(3) also provides that the Commission can order the restoration of lost wages. Whilst I am satisfied that some recognition of lost wages is appropriate, this should be limited by the extent of Mr Mundy’s misconduct. I consider that Mr Mundy’s earnings of $1400 since the termination of his employment should be deducted from the amount he would otherwise have earned. The remaining amount should be reduced by 75% to reflect the extent to which his misconduct led to the termination of his employment.

[55] An Order (PR567262) requiring that Mr Mundy be reinstated to his previous position within 14 days, on terms and conditions not less favourable than those which applied before the termination of his employment, will be issued. This Order will provide for continuity of service and lost income in the terms expressed. To the extent that the parties cannot reach agreement about the quantum of this amount, leave to refer the matter back to me is reserved.

Appearances:

N Grealy representing the Applicant.

R Jansen representing the Respondent.

Hearing details:

2015.

Port Augusta:

May 8.

 1   Exhibit R4

 2   Exhibit R4, Serious Misconduct

 3   Exhibit R5, 1.8 Sleeping on Duty

 4   Exhibit R7

 5   Exhibit A2, paras 18 and 19

 6   Exhibit A2, para 22

 7   Exhibit R13, para 7

 8   Exhibit R8

 9   Exhibit R8, last para

 10   Transcript, Sound Recording 8 May 2015, 10:03:50 am - 10:05:02 am

 11   Exhibit R12, paras 5 and 6

 12   Exhibit R12, para 7

 13   Transcript, Sound Recording 8 May 2015, 10:05:02 am - 10:05:58 am

 14 (1995) 62 IR 371 at 373

 15   Exhibit R9

 16   Exhibit A2, Annexure C

 17   PR947746, 9 June 2004

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